In their article, Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison, Professors Turner and Redlich ostensibly compare North Carolina’s “open-file” criminal discovery with Virginia’s “closed-file” discovery. Based on their survey results, they conclude that open-file discovery is “a better guarantor of informed decisions and efficient process in criminal cases.” While we appreciate the authors’ justifiable concerns about the relative reliability of criminal convictions between Virginia and North Carolina, we must disagree with their methodology and, as a result, many of their conclusions. Rather than refute line-by-line, I will make a few brief general comments on behalf of Virginia’s prosecutors.

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a question that is probably impossible to definitively answer but that is very important to explore: where state legislatures and courts continue to retain outmoded tort doctrines like contributory negligence, which tend to limit plaintiffs’ access to juries, is this because state legislatures and judges believe juries with large concentrations of African-Americans and low-income people will unacceptably distribute wealth to plaintiffs? The term “Bronx effect” alludes to this alleged phenomenon. No other article has rigorously tried to link the so-called Bronx effect with the perpetuation of outmoded tort doctrines. The authors use a complex interdisciplinary approach to rank states in terms of the degree to which their tort doctrines deny plaintiffs’ access to juries. Digging deep into factors that might affect a state’s ranking, they then find strong correlations between a state’s law making it difficult for plaintiffs to reach a jury, and a state’s having a large African-American population and/or being part of the South. This and other findings in the article are significant, bringing to light a race- based exclusionary pattern in the legal system. The pattern of keeping cases from black buries also likely leads to undercompensation of African-American plaintiffs, my response explains. The article deserves a place in torts scholarship generally, in critical race scholarship, and in empirical legal scholarship. While it is not surprising that definitive causal conclusions are lacking, implicit bias may shed light on the mechanisms by which these outmoded doctrines endure. The article’s calls for reform are reasonable in light of the evidence of the study and other torts scholarship.

More than a quarter-century has passed since the Supreme Court decided inEmployment Division v. Smith that religious accommodations are primarily a matter of legislative grace, not constitutional right. In that time, barrels of ink have been spilled over the merits of the Smith decision. But comparatively little attention has been given to the issue of how legislatures and other political actors should exercise their discretion to grant or deny specific religious accommodations. In their article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, Professor Hillel Levin, Dr. Allan Jacobs, and Dr. Kavita Arora aim to fill that critical gap. They propose a specific methodology for political actors to use in considering requests for religious exemptions—with the goal of bringing more consistency to the accommodation project—and their proposal has much to recommend it. This Response argues, however, that the Authors’ argument for their proposal suffers by trying to do too much. Instead of offering their proposal solely as a prudential tool for policymakers, they also frame it as a constitutional tool that judges can use to enforce the Religion Clauses of the First Amendment. As detailed in this Response, the Authors’ effort to have their proposal serve this second function runs into serious problems that can only distract from their primary mission. Accordingly, this Response suggests that the Authors refocus exclusively on that primary mission in future efforts to advance their proposal and offers a few suggestions for how the Authors might seek to operationalize their test in the political realm.

When U.S. Courts adjudicate transnational matters, they risk two forms of judicial imperialism. The first—unilateral imperialism—involves adjudication by a single state at the expense of multilateral forms of resolution or global governance. The second—sovereigntist imperialism—threatens the sovereignty of other states who might wish to resolve the controversy themselves. The risk of imperialism may lead U.S. courts to hesitate to adjudicate transnational claims. In Foreign Governments as Plaintiffs in U.S. Courts and the Case Against “Judicial Imperialism,” Professor Hannah Buxbaum highlights that in addition to facing involuntary adjudication in U.S. courts, foreign states voluntarily sue in U.S. courts as well. The phenomenon of foreign states as plaintiffs, she argues, undermines concerns for imperialism and counsels in favor of U.S. judicial resolution of transnational matters.

Buxbaum’s focus on foreign states as plaintiffs is an important contribution. The implications of the focus, however, are more circumscribed than her article might suggest. The fact that foreign states occasionally sue in U.S. courts means that adjudication of transnational claims by U.S. courts does not always constitute unilateral imperialism. Rather, suits by foreign states may be a form of global governance. When it comes to concerns for sovereigntist imperialism, by contrast, foreign invocation of U.S. jurisdiction fails to undermine the sovereignty concerns that arise when U.S. courts adjudicate against the will of foreign states. First, the typical claims foreign states assert as plaintiffs themselves show respect for sovereignty. Second, consent matters, and in nonconsensual cases sovereignty concerns continue to exist. Third, notions of reciprocity do not automatically justify involuntary adjudication due to foreign state invocation of U.S. jurisdiction. More is needed to conclude that the phenomenon of foreign states as plaintiffs justifies adjudication against the will of those states.

This Response to Professors Levin, Jacobs, and Arora’s article, To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, focuses on their claim that the law governing religious exemptions to medical neglect is messy, unprincipled, and in need of reform, including because it violates the Establishment Clause. I disagree with this assessment and provide support for my position. Specifically, I summarize and assess the current state of this law and its foundation in the perennial tussle between parental rights and state authority to make decisions for and about the child. Because these are featured as examples in their work, I also summarize and assess the current state of the law on vaccinations and male circumcision. I conclude with some thoughts on Levin, Jacobs, and Arora’s provocative suggestion that the law governing religious exemptions to medical neglect (as reformed according to their terms) might provide a template for addressing other accommodation claims such as those of religiously-motivated opponents of gay marriage.

This Response addresses Jenia Turner and Alison Redlich’s comparative analysis of criminal discovery practices in two neighboring states, Virginia and North Carolina. Whereas Virginia adheres to the traditional, category-driven approach, North Carolina requires its prosecutors to disclose the contents of their “file,” with some notable exceptions.

Open-file discovery has quickly become a fertile source of debate among scholars and practitioners. Turner and Redlich have devised a valuable survey to test theoretical claims commonly asserted by open-file discovery’s opponents and supporters. Unsurprisingly, the authors find that disclosure is generally broader in North Carolina (an open-file state) than in Virginia. More notable is the fact that the North Carolina prosecutors who answer the survey seem less opposed to open-file discovery than their Virginia counterparts.

Those who favor the expansion of open-file discovery will find ample cause for celebration in several, but not all, of Turner and Redlich’s findings. In this Response, I express my own reservations, which rest partially on standard concerns with survey data, as well as the fact that some of open-file’s state level success may rely upon the availability of an entirely different criminal justice system (i.e., the federal system) for complex investigations and prosecutions.